1. The Special Educational Needs Appeal System and ADR in England Neville Harris University of Manchester

2. Context Children with SEN comprised 21% of school pop. in England January 2010. 2.7% of the school pop. (220,890 children) had statements of SEN.

3. Background Education Act 1981: Local appeal committees (statement contents) and the Secretary of State (statement making). Education Act 1993: Special Educational Needs Tribunal. Code of Practice. SEN and Disability Act 2001: Special Educational Needs & Disability Tribunal. Discrimination cases under DDA 1995. Case management. Local authorities to facilitate dispute avoidance and disagreement via independent persons: ‘reducing appeals’. Tribunals, Courts and Enforcement Act 2007: First-tier Tribunal (Health, Education and Social Care Chamber)

4. Appeal grounds STATEMENT DECISIONS: not to make a statement to make, amend or not amend a statement not to grant parental request for naming of different school. to cease to maintain a statement. not to amend a statement following a review. ASSESSMENT DECISIONS: refusal of parent’s request for assessment of statemented child. refusal of parent’s request for assessment of unstatemented child. refusal of head teacher request for formal assessment of child.

5. Appeal Trends: registered SEN appeals 1994/95-2008/09 94/95 95/96 96/97 97/98 98/99 99/00 00/0101/02 02/03 03/04 04/05 05/06 06/07 07/08 08/09

6. Disability discrimination claims New jurisdiction commenced 2002 2002-0378107 2006-071008041 2007-081477855 Registered Decided Withdrawn/stuck out

7. ESRC Research Local authority and PPS practice vis-à-vis communicating with and supporting parents can have a strong impact on the appeal rate.

8. Appeal success rates Appeals upheld by SENDIST/First- tier Tribunal in England in relation to different subject matters, 2008- 09 Refusal to assess 107236% 134 8866% Refusal to statement 182 6% 41 2459% Refusal to re-assess 40 1% 5 360% Ceasing statement 34 1% 14 964% Contents of statement 163955% 597 52688% RESOLVED DEC’D UPHELD

9. Mediation Average number of appeals lodged per local authority: 20 Average number of appeals heard per local authority: 7 Average period between lodging appeal and hearing: 6.4 months Average number of cases with mediation settlement per local authority – between 1.1-1.7. Figures are for 2007-8 apart from average waiting period (2008-09).

10. ADR and the Tribunal Government push for use of ADR, especially since 2004. SEN Green Paper (2011): should mediation be attempted before an appeal is registered? Senior President of Tribunals must have regard to “the need to develop innovative methods” for resolving tribunal-type disputes (TCEA 2007). But SEN tribunal considers its role “decision-making” not “brokering compromise” (AJTC report 2008). HESC concern at c.33% of appeals where last-minute settlement occurs at tribunal door. Appeal and mediation not mutually exclusive. Appeal used for leverage. Legal aid proposed cutback for SEN advice reversed.

11. Tribunal Rules and ADR First-tier Tribunal must, “seek, where appropriate” – (a) to bring the parties’ attention to the availability of “any appropriate alternative procedure” for disputes resolution; and (a) to bring the parties’ attention to the availability of “any appropriate alternative procedure” for disputes resolution; and (b) if parties wish, and consistent with broad justice/fairness objective,* facilitate its use. (HESC Rules 2008, rule 3) (* Includes flexibility but also avoidance of delay and sensitivity to complexity of the issues.)

12. “Consider mediation today” HESC Deputy President’s letter to appellants. Settlement rate up in 2010-11: Appeals heard +2.8% Appeals heard +2.8% Settlements +7.3% Settlements +7.3% HESC monitoring of uptake of mediation – may explore reasons if uptake low. Early neutral evaluation pilot (for refusal to assess cases). HESC Deputy President’s letter to appellants. Settlement rate up in 2010-11: Appeals heard +2.8% Appeals heard +2.8% Settlements +7.3% Settlements +7.3% HESC monitoring of uptake of mediation – may explore reasons if uptake low. Early neutral evaluation pilot (for refusal to assess cases).